Spring Semester 2020
Master Thesis in Law, 30 credits
Master’s Programme in Law, Gender and Society, 120 credits Supervisor: Monica Burman
THE PROBLEM OF CHILD PORNOGRAPHY
An analysis of the historical development of the Swedish legislation on child pornography
crimes
Joanna Sanchez Sundqvist
2
Abstract
Child pornography is today seen in many countries and societies as a particularly heinous crime. By depicting sexual abuse of children or sexualised images and videos of children, child pornography crimes target and exploit the vulnerability of children. In Sweden, the sexual liberation in the 1960s led to the legalisation of all pornography, both adult and child pornography, in 1972. Since then, there have been several legal reforms aimed at criminalising different aspects of child pornography, and today, the production, dissemination, possession, and viewing of child pornography is illegal. This thesis focuses on four legal reforms: the reforms of 1972, 1980, 1999 and 2010.
With the point of departure in Socio-Legal Studies and Critical Legal Studies, the aim of the thesis is to gain a further understanding of how the Swedish legal understanding of child pornography and child pornography crimes have developed and taken shape since the 1970s. Furthermore, the ‘What’s the problem represented to be?’ approach has been applied as a methodological tool to analyse the problem representations of child pornography in Swedish law and preparatory work, as well as the assumptions on which the laws have been made.
The main findings of this thesis are that ever since the legalisation in 1972, the matter of freedom of speech has been understood in Sweden as closely linked to the right to consume pornography. Children’s rights were unaddressed and unacknowledged in the preparatory work prior to the 1972 reform, and in the preparatory work of the subsequent reforms, the idea of freedom of speech as an important matter to take into consideration before criminalising various actions related to child pornography has remained. This focus on the right to consume and on child pornography as linked to freedom of speech has had negative effects on child victims of sexual exploitation in Sweden, who for many years have lacked legal protection against these forms of exploitation.
Keywords: Child pornography crimes, the WPR approach, problem representations, freedom of speech.
Table of Contents
Abstract ... 2
Acknowledgements ... 5
List of abbreviations ... 6
1 Introduction ... 7
1.1 Problem background ... 7
1.2 Aim and research questions ... 8
1.3 Delimitations ... 9
1.4 Theoretical framework ... 9
1.4.1 Socio-Legal Studies ... 9
1.4.2 Critical Legal Studies ... 10
1.4.3 Theoretical perspectives on children’s rights ... 11
1.5 Methodology and material ... 11
1.5.1 Methodology ... 11
1.5.2 Material ... 14
1.6 Ethical considerations ... 15
1.7 Relationship to earlier research ... 16
1.8 Terminology ... 16
1.9 Disposition ... 17
2 Background: Child pornography crimes ... 19
2.1 Definition ... 19
2.2 Child pornography today: An overview ... 20
2.3 The Swedish legislation today ... 20
2.4 The Swedish Criminal Code and “the injured party” ... 21
2.5 Child pornography and the CRC ... 23
3 Historical development of the Swedish legislation ... 25
3.1 Introduction ... 25
3.2 The 1972 reform: The legalisation of pornography ... 25
3.3 The 1980 reform: The partial criminalisation of child pornography ... 27
3.4 The 1999 reform: A wider criminalisation of child pornography ... 28
3.5 The 2010 reform: The criminalisation of viewing child pornography ... 30
3.6 The debate: Freedom of speech vs. children’s rights ... 30
4 Analysing the problem representation in Swedish law ... 33
4.1 Introduction ... 33
4.2 What the ‘problem’ is represented to be: Freedom of speech ... 33
4.3 The underlying assumptions and presuppositions: The right to consume ... 36
4.4 How the representation of the ‘problem’ came about ... 37
4.5 The representation’s silences ... 39
4.6 The effect of the representation ... 40
4.7 How the representation of the ‘problem’ was produced, disseminated and defended . 41 5 Conclusion and recommendations for future research ... 44
5.1 Conclusions ... 44
5.2 Recommendations for future research ... 46
List of references ... 47
Swedish legislation and public materials ... 47
Legislation ... 47
Propositions ... 47
State inquiries ... 47
Other public materials ... 48
International legislation and conventions ... 48
Literature ... 48
Other Sources ... 50
Appendix 1 ... 52
5
Acknowledgements
I would like to start by thanking Monica Burman, my supervisor, for her guidance and support. I feel very lucky to have had Monica as my supervisor, and it is much thanks to her encouragement and advice that I have managed to finalise my thesis. Moreover, I would like to thank Jan Leidö and all the other teachers working with this Master programme, for sharing their knowledge and passing it on to us students.
I would also like to thank my family for their support and unwavering belief in me.
Many thanks to my sister Micaela, for taking time to brainstorm and discuss not only the topic of this thesis, but the topics of nearly all papers and exams I have written during my studies. I also want to thank my parents for encouraging me to continue my studies when it was getting tough, and for cheering me on as I made progress. Furthermore, without my husband Álvaro, this thesis would not have been completed. Álvaro, I cannot thank you enough for helping me manage my full time studies alongside my full time work. You have listened to me when I have been happy and excited, as well as when I have been tired and whiny. You have always asked me “How can I help?” whenever I have struggled, and it has made me feel less alone and has strengthened my will to finish my studies.
Lastly, I would like to thank my friends and colleagues for showing an interest in my thesis and for never complaining about how much I have talked about my thesis writing. I would especially like to thank Emma, who was the one to suggest that I should write my thesis on child pornography legislation. Not only did that help me get a jumpstart with my thesis writing, but it also opened my eyes to an immensely important topic that I am glad to have looked further into.
6
List of abbreviations
BrB Brottsbalken (the Swedish Criminal Code) CLS Critical Legal Studies
CRC Convention on the Rights of the Child CDA Critical Discourse Analysis
Interpol The International Criminal Police Organization
RFSL The Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights SLS Socio-Legal Studies
WPR the ‘What is the problem represented to be?’ approach TF Tryckfrihetsförordningen (Freedom of the Press Act)
UN the United Nations
YGL Yttrandefrihetsgrundlagen (Fundamental Law on Freedom of Expression)
7
1 Introduction
1.1 Problem background
Sweden is often considered a country that has come far when it comes to children’s rights. It has for example been illegal ever since 1979 to chastise children, a law that at the time was widely questioned internationally,1 making Sweden the first country in the world to make it illegal for parents to physically discipline their children. However, the Swedish legislation on child pornography has a somewhat surprising past, and has been debated and fiercely criticised throughout the years. As of today, the debate and criticism focus mainly on where the crime is placed in the Swedish criminal code, whereas historically, much of the debate has been on whether or not certain acts should be criminalised at all.
Today, child pornography is considered by most societies to be an especially heinous crime. With technological advancements, child pornography crimes have increased in numbers and have also developed to be more vicious and harmful than before.2 The effects on the child victims are strong, and many suffer in different ways for years to come. It is common for children who have been abused and depicted in pornographic material to develop depression and feelings of guilt.3 Furthermore, child pornography crimes are directly linked to the sexual abuse of children. Apart from the fact that some child pornographic material depict physical, sexual abuse against children, the fact that the abuse has been recorded, shared and viewed add to the victimisation and abuse of the child victims.4 The trauma is simply reinforced by knowing that the recorded and depicted abuse is circulating and being enjoyed by others.
The matter of child pornography as abuse of children and children’s rights is addressed in the United Nations Convention on the Rights of the Child (CRC). According to the convention, all state parties that have ratified the convention should work against sexual exploitation of children, as well as all exploitation of children for pornographic purposes.5 Sweden has ratified the convention, and has through the ratification therefore agreed to work towards the abolishment of all types of sexual exploitation of children. However, how this work should be carried out is not specified, and there are many factors that affect how each state chooses to tackle the issue. Since it is not explicitly stated that possession of child
1 Sveriges Radio (2015)
2 ECPAT, nd.
3 Ibid.
4 Ost, p. 104 (2009); O’Donnell and Milner, p. 69 (2007).
5 UNCRC art 34
8 pornography should be criminalised, states can take it upon themselves to decide whether or not possession should in fact be considered a crime.
In Sweden, child pornography has not been always been identified as harmful and dangerous for children. In fact, child pornography was completely legal in Sweden between the years of 1972 and 1980.6 This means that it was legal to produce, possess, view and distribute child pornography during this period of time. At the time of legalisation it was lumped together with adult pornography, which was legalised at the same time as child pornography. In 1980, a partial criminalisation was passed as law, but for example possession of child pornography remained legal in Sweden until 1999.7 This can be difficult to understand today, as it now is illegal in Sweden to depict children in pornographic images, to distribute or acquire such images, as well as viewing and possessing pornographic images of children.8 Clearly, much has happened in Sweden with the legal understanding of the harms of child pornography, as well as with the understanding of children’s rights and needs. How this understanding has developed throughout these legislative reforms, where child pornography crimes went from being completely legal in Sweden to fully criminalised, is the focus of this study.
1.2 Aim and research questions
The aim of this thesis is to gain a further understanding of how the Swedish legal perspective on child pornography has developed and taken shape, as well as how that development has influenced the law as it is today. By critically analysing preparatory work, previous legislations and other sources that took part in the debates, this thesis will investigate the historical understanding of child pornography in Sweden and the assumptions on which a number of legislative changes have been made. Furthermore, by including various texts that have been written in relation to the debates regarding the legislation in the analysis, and not only preparatory work and legislations, it is possible to further contextualise the development of the legislation. This is an important part of understanding the actual law, as laws are not created in a vacuum but are products of the society in which they are created.
6 SOU 2007:54, p. 73.
7 Prop. 1997/98:43
8 BrB 16:10a.
9 These three questions are to be researched and answered within this study:
• What has been the historic development of the Swedish legislation on child pornography since the 1970s?
• Historically, what has shaped the legal understanding of the child pornography crimes in Sweden?
• On what assumptions has the legal understanding of child pornography been made?
1.3 Delimitations
Without distinct and clear delimitations, a study like this can easily become too broad and thereby end up being too vague and superficial, with the end result being that the topic has not been studied and analysed sufficiently in depth. Due to this, prior to commencing the research, a few delimitations have been formulated so as to ensure that the study’s aim will be met. To start with, this study will not analyse or examine in any greater detail whether or not the provisions on the child pornography crime should be placed in the 6th chapter of the Swedish criminal code, or in the 16th chapter. This is something that not only has been investigated and studied, but also something that falls outside the aim of this thesis.
Furthermore, when examining the historical development, and debates, on child pornography laws in Sweden, the thesis will narrow down its focus to four legal reforms that have been implemented since the 1970s. Prior to the 1970s, all types of pornography were banned in Sweden, making 1970 a natural point of departure for this study. There have been more legislative changes than those addressed in this thesis, but it would not be possible to look into all. Therefore, the thesis will focus on these four legal reforms as they relate directly to the consumption, creation and dissemination of child pornography. Other legal reforms are equally interesting, such as the laws on the rights to import or export child pornographic material, but those are outside the scope of this thesis.
1.4 Theoretical framework
1.4.1 Socio-Legal StudiesFor this study to be able to achieve its aim and meet the set out objectives, the socio-legal approach has been chosen as a suitable and appropriate point of departure and theoretical framework. This theoretical approach has been selected due to a number of reasons. Firstly, as this is a study within law and society, which will analyse and examine a number of preparatory work and legislations, it needed a theoretical framework that has an understanding of law that is not based on the black letter approach, the doctrinal
10 understanding of law as something neutral and as something set apart from the rest of society.
This understanding of law was common among legal scholars during the 20th century,9 but has been contested by many legal theories since.
In the interdisciplinary socio-legal approach to law, law is understood as constructed by human beings, by society, and a sphere that is intertwined with society.10 As such, law can be questioned, critiqued and interpreted as a product of the context in which it has taken shape and developed. According to the socio-legal approach, “analysis of law is directly linked to the analysis of the social situation to which the law applies, and should be put into perspective of that situation by seeing the part the law plays in the creation, maintenance and/or change of the situation”.11 This fundamental aspect of the approach is self-evidently suitable for this study, as the purpose of the study is to analyse the development of the child pornography legislation while looking at, and analysing, the societal assumptions that has shaped the legislation and which the law is based on.
Moreover, the socio-legal approach is suitable for analysing legislation and its consequences in society, the gap between legislation and implementation, and to examine law and its functionality.12 Due to it being an interdisciplinary approach, it has its roots in a wide range of studies, such as “economics, geography, psychology and anthropology”,13 and it being interdisciplinary may be regarded as a strength, especially since, when applied, it combines jurisprudence and law with important sociological aspects and factors.
1.4.2 Critical Legal Studies
With the socio-legal approach as a foundation for the theoretical framework used and applied for this study, the school of Critical Legal Studies (CLS) will also be applied when analysing the findings of the thesis. Given that the victims of crimes related to child pornography are children, a group that in most societies, including the Swedish society, hold very little power, the power imbalance between those who propose and pass laws (i.e. adult politicians in the Swedish parliament and government) and those affected by these laws (i.e. child victims of child pornography) cannot be ignored. For this aspect to be fully taken into account, the approach of critical legal studies is necessary.
9 Silbey, p. 25 (2013)
10 Silbey, p. 25 (2013)
11 Schiff, p 287 (1976)
12 Banakar, p. 49 (2015)
13 Clarke, p. 41 (2013)
11 CLS seeks to examine, question and critique the injustices and power imbalances that, according to the school of thought, are intrinsic to law.14 According to CLS scholars, the legal systems help perpetuate oppressive relations, and see the CLS as a tool to expose the politics of power within law.15 When looking at the development of the child pornography legislation, it is without a doubt vital to take into account not only the power imbalances, but also the political driving forces behind the legalisation of child pornography, and the political resistance to, for example, criminalise the viewing and dissemination of child pornography.
Therefore, CLS is an appropriate part of the theoretical framework for this thesis.
1.4.3 Theoretical perspectives on children’s rights
Lastly, since the thesis deals with the children’s rights legal issue of child pornography, a few words need to be said about the theoretical aspect of children’s rights. According to some scholars, children’s rights research is vastly under-theorised.16 One need not be a legal expert or scholar specialised in children’s rights to discover this, instead it becomes clear quite quickly when trying to research for a study within the field of children’s rights. Due to this, the CRC is often used and treated as a theoretical framework, even though, strictly speaking, it is not a theoretical framework.17 This thesis is in this aspect no different. For the sake of the study, the CRC has been used as a theoretical background to children’s rights and as a tool to understand the international consensus on child pornography, as outlined in the CRC.
1.5 Methodology and material
1.5.1 MethodologyThis thesis has been conducted as a qualitative study. In order to answer the first research question, various sources have been studied to be able to examine and compile an overview of the historical development of the laws on child pornography in Sweden. One book in particular, Rätten att kränka ett barn – Om barnpornografi och yttrandefrihet (Loosely translates to “The right to violate a child – On Child pornography and freedom of speech”) by Christina Hagner, has been used frequently in the process of writing this thesis, especially in relation to research question number one. The book is in no way unbiased, and does not claim to be, but does however provide a good, factual overview of the development of the laws in Sweden, up to 1995 when the book was published. As it has proved difficult to access primary
14 Minda, p. 106 (1995)
15 Minda, p. 106 (1995)
16 Cordero Arce, p. 284
17 Cordero Arce, p. 284
12 sources from opponents to the various bans on child pornography, Hagner’s book has been used as a source regarding for example the opposition to the criminalisation of child pornography in Sweden.
To be able to answer the second and third research question, the methodology used is the ‘What’s the problem represented to be? Approach’ by Carol Bacchi. The WPR approach, as formulated by Carol Bacchi, is a useful tool for analysing policy papers, but may also be used for, as in this instance, analysing legal texts, preparatory work, articles and more. The WPR approach rests on the understanding that policies, or in this case legislations, do not only address and suggest solutions to societal problems. Instead, they also help create and reproduce a certain understanding of what the problem actually is.18 Often, the WPR approach is used to analyse policy papers on issues related to gender equality and men’s violence against women, but there is no reason the approach cannot be used for other topics as well.
When it comes to the subject of this thesis, the matter of child pornography and the understanding of children’s rights, the WPR approach is a useful and suitable tool for analysis.
To analyse what understanding a certain policy is creating, what problem representation it reproduces, the WPR approach consists of a number of questions that a researcher may seek the answers to, and will thereby be able to not only look at what is consciously being expressed but also what is created and reproduced through the language used in the paper. These questions range from “What’s the problem represented to be in a specific policy?” to “What effects are produced by this representation of the ‘problem’?”.19 By analysing the material using the WPR approach’s analytical questions, it makes the analysis and reasoning more structured. In the WPR approach, there are a total of six questions asked, and all six have been used for this thesis.
The questions to pose according to the WPR approach:
1. What’s the ‘problem’ (for example, of ‘problem gamblers’, ‘drug use/abuse’, ‘gender inequality’, ‘domestic violence’, ‘global warming’, ‘child sexual abuse’ etc.) represented to be in a specific policy?
2. What presuppositions or assumptions underlie this representation of the ‘problem’?
3. How has this representation of the ‘problem’ come about?
18 Bacchi and Eveline, p. 112 (2010)
19 Bacchi and Eveline, p. 117 (2010)
13 4. What is left unproblematic in this problem representation? Where are the silences?
Can the ‘problem’ be thought about differently?
5. What effects are produced by this representation of the ‘problem’?
6. How/where has this representation of the problem been produced, disseminated and defended? How could it be questioned, disrupted and replaced?20
The WPR approach lies within the methodology and theoretical framework of discourse analysis. Discourse analysis is a broad methodological framework21 that contains various approaches that all rest on the understanding that “our ways of talking do not neutrally reflect our world, identities and social relations but, rather, play an active role in creating and changing them”.22 Based on the constructionist approach, the discourse analysis is a useful tool to help the researcher “make observations about discourses and how they are used”,23 which in this specific thesis will be the most fruitful method to analyse the previous legislations, as well as the current one, and draw conclusions based on the discourses in the bills. Discourse analysis is a broad methodological framework24 that contains various approaches that all rest on the understanding that “our ways of talking do not neutrally reflect our world, identities and social relations but, rather, play an active role in creating and changing them”.25 Moreover, through discourse analysis, it is possible to focus not on the consequences of for example certain legislation, but to analyse the language, the discourse and “how the discourse […] constructs basic categories of social life, such as sex or gender, violence or sexuality”,26 something that is clearly suitable for this specific thesis.
The WPR approach and discourse analysis are methods and theories based on the understanding that language matters, and that the language in a policy document, a specific legislation or a drafted proposal, not only expresses the sentiments and opinions of what the author wants to express, but also constructs and reproduces identities and truths through the language used and what is being said.27 Due to this, discourse analysis in general is an appropriate method to analyse the types of legal issues addressed in this thesis. It is especially appropriate when taking into consideration that Critical Discourse Analysis (CDA), one approach within the branch of discourse analysis, focuses on “the use of discourses as a
20 Bacchi and Eveline, p. 117 (2010)
21 Niemi-Kiesiläinen, Honkatukia and Ruuskanen, p. 80 (2007)
22 Winther Jørgensen and Phillips, p. 1 (2002)
23 Niemi-Kiesiläinen, Honkatukia and Ruuskanen, p. 77 (2007)
24 Niemi-Kiesiläinen, Honkatukia and Ruuskanen, p. 80 (2007)
25 Winther Jørgensen and Phillips, p. 1 (2002)
26 Niemi-Kiesiläinen, Honkatukia and Ruuskanen, p. 78 (2007)
27 Niemi-Kiesiläinen, Honkatukia and Ruuskanen, p. 78 (2007)
14 means of exercising power”.28 Children are indeed a group with extremely limited power in the Swedish society, and how the political sphere and legal system decide to define crimes against children must be analysed with the power relations and imbalances in mind. The use of the WPR approach, specifically, helps the thesis to become more structured and clear, as the discourse analysis method can, in all its flexibility, prove to be a difficult method to use as it risks becoming vague and difficult to work with.
1.5.2 Material
For this thesis, the main material used has been previous and current provisions regulating child pornography crimes, as well as relevant preparatory work. In Swedish legal tradition, preparatory work holds an important status as legal source. After written law, preparatory work is second in the hierarchy of legal sources, and is used as a tool for how to interpret the written law. 29 Among preparatory work, there is also a hierarchy: the later the preparatory work is produced in the legislative process, the more important it is.30 Due to its importance, preparatory work is vital when analysing the development of the Swedish laws on child pornography crimes. However, the preparatory work is used as a source knowing full well that they are not unbiased work, and that they have to be analysed and understood in the context in which they were written, with whichever purpose they were written. These sources have all been accessed through the Swedish government’s website, including old preparatory work that has been digitised and made available online.
Furthermore, a number of academic non-legal sources have been used. Among these sources are books on jurisprudence, criminal law and children’s legal rights in general, literature on the subject matter of child pornography, sexual abuse of children, and the correlations and links between the two. These sources have been accessed through libraries, specifically the Umeå university library and the Swedish Police authority’s staff library.
There has also been a need for a certain amount of sources that can provide an image of the context in which the legal provisions on the child pornography crimes in Sweden have been debated, proposed and passed. Therefore, literature criticising and supporting the various changes in the Swedish legislation has been used as sources, as well as a number of newspaper articles of the same nature. These sources have been used to further contextualise the development of the provisions, and to broaden the focus from legislation and preparatory
28 Niemi-Kiesiläinen, Honkatukia and Ruuskanen, p. 81 (2007)
29 Gunnarsson, Svensson and Davies, p. 6 (2007).
30 Gunnarsson, Svensson and Davies, p. 6 (2007).
15 work to also include political and societal factors that need to be taken into account when answering the formulated research questions.
Lastly, due to the crisis following the outbreak of the coronavirus, and the need to self-quarantine when one exhibited cold symptoms of any kind, it was impossible to access libraries and therefore certain sources during the most crucial weeks of thesis-writing. This applies to a few books that are only available as reference literature in the libraries, and that are not available for purchase in online bookstores within a reasonable timeframe. I would for example have liked to use Carol Bacchi’s “Analysing Policy – What’s the Problem Represented to Be?” but was unable to. I solved this problem by using secondary sources where possible, and another book by Bacchi which also outlines the ‘What’s the problem represented to be?’ approach.
1.6 Ethical considerations
As a researcher, there are always several ethical matters that need to be taken into account when conducting research. If the researcher interviews individuals for example, there are plenty of considerations that need to be made, from how to choose participants in the study, how to inform the participants of the study and its purpose, etcetera.31 Even when conducting a study such as this one, where no one will be interviewed and the entire study is based on literature and not specific cases, there are certain aspects to keep in mind.
It is vital for every researcher to be aware of their own role and the preconceived notions they hold. I am not an unbiased researcher who automatically analyse everything in a neutral manner, I am an individual shaped by the society in which I have been raised, and the social categories that I belong to in terms of race, class and gender, and therefore it is important to be self-reflective and aware. Concretely, for this thesis, this means that I as the author of this study have to be mindful of my own preconceived notions on children’s rights and the Swedish law, and to not assume before conducting my analysis what the result of the analysis, and the thesis, will be. Furthermore, since this study deals with severe sexual crimes against children, it is particularly important to use respectful and insightful language when addressing these issues. However, naturally, fewer ethical considerations need to be taken compared to if actual children or victims of child pornography crimes would be interviewed, or if actual legal cases would be analysed.
31 McCormick, p. 24 (2012)
16
1.7 Relationship to earlier research
There is plenty of research regarding child pornography and sexual abuse of children, and the links between the two. However, that research only relates slightly to this thesis, as only a very brief summary will be provided on that specific topic within this thesis. Instead, the focus will be on the research conducted on how the Swedish legislation impacts child victims, as these studies add to the understanding of the context in which the legislations have been passed and changed. One study on this topic is a study conducted in 2017 by Anna Kaldal and Malou Andersson on behalf of ECPAT International. The main purpose of the study was to research the criminal legal protection against documented sexual abuse against children, looking into a number of court cases and the legal framework in itself.
1.8 Terminology
The matter of terminology is vastly important when it comes to the subject of child pornography, and there are many factors to take into consideration when deciding what terminology to use. To start with, the term “child pornography” is inherently problematic according to many. Children’s rights organisations focused on protecting children from sexual exploitation and abuse, such as ECPAT, criticise the term and argue that it is misleading.32 ECPAT argues that by using the term “child pornography” there is a risk of confusing child pornography with regular pornography, which can be both legal and produced with the consent of the individuals involved. Children however cannot consent to sexual acts, and can therefore never consent to participating in the material that is produced.33 Simply put, the term pornography can be argued to be inherently incorrect, as you could argue that adults can choose to participate in the making of the pornography, whereas children are unable to do so.
It is not only children’s rights organisations that criticise the terminology commonly used when referring to child pornography, some researchers and scholars do too. 34 The International Criminal Police Organization (Interpol) advises against using the term, and instead suggest the term “child sexual abuse”,35 whereas ECPAT recommends “documented sexual abuse of children”,36 which is more specific and perhaps more accurate than Interpol’s suggestion. It is not only due to the possible mix up with adult pornography that the term child pornography is criticised, it is also argued that it is important that the seriousness of the
32 See e.g. ECPAT, p. 8 (2017).
33 See e.g. ECPAT, p. 8 (2017).
34 See e.g. O’Donnell and Milner, p. 68 (2007); Ost, p. 32 (2009).
35 https://www.interpol.int/en/Crimes/Crimes-against-children/Appropriate-terminology, n.d.
36 ECPAT, p. 8 (2017).
17 crime is reflected in the terminology. Interpol states that “the seriousness of [the] abuse should not be reduced by words such as ‘porn’”,37 and Suzanne Ost argues that “[…] if the harm caused by child pornography is to be emphasised it is more appropriate to refer to such images as exploitative images of pornography […]”. 38
However, Ost goes on to state that since child pornography is the most commonly used term, it is also the term that she will be using.39 In regards to this thesis, the approach is similar. While acknowledging that the term child pornography may be problematic, and should perhaps be changed in the future, for this thesis, the term child pornography is being used. The reason for this is twofold. To start with, since this study will analyse and examine legal texts, it could make it confusing for the reader if the language and terminology would differ throughout the text. However problematic, “child pornography” is the legal term in Sweden for the material in question. Furthermore, the term “documented sexual abuse of children” could also be questioned, as it indicates that child pornography would be limited to material where real children are being sexually abused. This would exclude material where children are displayed in a sexual manner but are not sexually abused per se, as well as pornographic material of fictitious children. Due to these two factors, I see it as justified to use the term child pornography in this study.
1.9 Disposition
The structure of the thesis is as follows: in Chapter 1 – Introduction, the research problem is presented through a brief outline of the background of the issue of child pornography and child pornography legislation. It is also in this first chapter that the thesis’ aim and objectives are presented, as well as the research questions that the thesis seeks to answer and the delimitations of the thesis. The theoretical framework of the thesis is also presented in the first chapter, as well as the chosen methodology and the material that has been used. Here, the ethical considerations of the thesis are also discussed and addressed. Lastly, the delimitations of the thesis and its relationship to previous research are included, together with a short clarification regarding the terminology as well as an outline of the thesis’ structure.
In Chapter 2 – Background: Child pornography crimes, an overview is provided of what constitutes child pornography crimes and how the crimes are dealt with in Swedish legislation as well as the Convention on the Rights of the Child. Chapter 3 – Historical development of the Swedish legislation, outlines and presents the four reforms in Swedish
37 https://www.interpol.int/en/Crimes/Crimes-against-children/Appropriate-terminology, n.d.
38 Ost, p. 32 (2009).
39 Ost, p. 32 (2009).
18 legislation on child pornography, as well as the debates related to proposed and implemented changes in the legislation. In Chapter 4 – Analysing the problem representation in Swedish law, the analysis is conducted and presented. Lastly, in Chapter 5 – Conclusions and recommendations for future research, the thesis’ aim and research questions are revisited and the findings of the thesis presented, along with the reached conclusions. The chapter, and thesis, ends with a few recommendations on future research.
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2 Background: Child pornography crimes
2.1 Definition
What legally constitutes child pornography varies from country to country. In the UN’s Optional protocol to the CRC on the sale of children, child prostitution and child pornography, child pornography is defined as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”.40 According to the European Union, a child is any person under the age of 18, and child pornography is defined as “any material that visually depicts a child engaged in real or simulated explicit conduct”, as well as any depiction of children’s genitalia for sexual purposes.41
In Swedish legislation, child pornography has throughout the years been defined in a similar manner. In proposition 1970:125, an image was defined as pornographic if it had no scientific or artistic value, and in an unconcealed and provocative manner displayed a sexual motif.42 Child pornography specifically has since then been understood as pornographic images, as defined above, where children have either been performing actions understood as sexual, or been displayed as present when adults perform sexual actions. The historical development of child pornography legislation in Sweden has therefore focused primarily on whether or not possession, dissemination, and viewing should be illegal, whereas the understanding of what constitutes child pornography has remained untouched by legal changes.
Exactly what the word “child” refers to in the legal term child pornography has however been debated and criticised. In Swedish legislation, “child” refers to “a person whose pubertal development is not complete or who is under eighteen years of age”43. If the person’s pubertal development is complete, it is only a crime to possess, view or disseminate pornographic material of them if it is clearly understood from the material or the circumstances that the person is under the age of 18. This definition of child will be addressed more thoroughly in section 2.3.
40 Optional protocol to the Convention on the Rights of the child on the sale of children, child prostitution and child pornography, G.A. A/RES/54/263, art. 2c. (2000).
41 Directive 2011/92/EU of the European Parliament and of the council, art. 2a and art. 2c.
42 Prop. 1970:125, p. 79.
43 Brottsbalken, kap. 16:10a.
20
2.2 Child pornography today: An overview
The matter of child pornography crimes is a global problem. With the advances of technology, pornographic material of children is shared easily and in large quantities to perpetrators all over the world. How many people that consume child pornography is impossible to know, just as it is impossible to know exactly how many children that are victimised by child pornography. What is known however, is that it is a multimillion dollar business,44 which is constantly growing thanks to technological advances. 45 Child pornography crimes are understood to be a violation of not just the child depicted in the material, but of children in general as child pornography furthers the sexualisation of all children. The advances of the Internet reinforce this violation, as images and videos never disappear from the Internet. Once shared, they are forever in circulation online.46 The material ranges from depiction of actual abuse that has taken place, or sexualised images of children where no physical abuse has taken place.
The victims of child pornography crimes are children of all ages, ranging from babies to teenagers. The perpetrators of these crimes, usually male, come from a wide range of socio- economic groups. There are links between the consumption of child pornography and other sexual crimes against children, and one study showed that as many as 38 per cent of those convicted of child pornography crimes had also been convicted of sexual crimes against the children depicted in the material.47 There are however studies that contradict the conclusion that there would be a clear link between consuming child pornography and actively, and directly, subject a child to sexual abuse, arguing that there is no clear linkage.48 Regardless, it cannot be ruled out that consumption of child pornography is a risk factor for other child sexual crimes.49
2.3 The Swedish legislation today
In Sweden today, it is illegal to view, produce and disseminate child pornography. This is regulated in the Swedish Criminal Code, Brottsbalken (BrB), chapter 16, section 10a. The provision states that it is illegal to depict a child in a pornographic image, as well as to disseminate, transfer or make such an image available to another person. It is also illegal to
44 Taylor and Quayle, p. 5 (2003).
45 SOU 2007:54, p. 18.
46 SOU 2007:54, p. 18.
47 SOU 2007:54, p. 18.
48 Taylor and Quayle, p. 12 (2003).
49 See eg. Marshall, p. 267 (1988).
21 possess such an image as well as to view it.50 The punishment for this offence is maximum two years in prison, and a fine or maximum six months in prison if it is ruled a minor offence.
However, if it is deemed to be a gross child pornography offence, the sentence is minimum six months in prison and maximum six years.51 What is important to note is that it is not only depictions of actual children in pornographic ways that are illegal, but also drawings and paintings.52
The provisions also state what the definition of a child is in relation to this specific crime. It is stated that “[a] ‘child’ means a person whose pubertal development is not complete or who is under eighteen years of age. If their pubertal development is complete, responsibility is only assigned for an act under the first paragraph, points 2-5, if it can be seen from the image and its attendant circumstances that the depicted person is under eighteen years of age”53. This means that the Swedish provisions on the child pornography crimes do not in fact apply to all children depicted in pornographic material, but only the child victims whose pubertal development is not complete, or where it is obvious that the child in question is under the age of eighteen.
Ever since the child pornography crimes were placed in the Swedish Criminal Code, the provisions have been situated in the 16th chapter that regulates crimes against the public order. This may be due to the fact that when pornography was legalised in Sweden and the only criminalisation related to pornography was that of displaying pornographic material in public, and to those who did not wish to view it, that offence was situated in the 16th chapter of the Criminal Code. When the proposition was made to criminalise creating child pornography with the intent to disseminate it, it was suggested that these provisions would also be placed in chapter 16,54 just as the previous provisions had been on displaying pornographic material in the public. It was also mentioned that depending on the conditions in which the pornographic material had been created, and the nature thereof, certain child offences where child pornography had been produced could also be affected and regulated by the provisions of chapter 6 of the Criminal Code, i.e. the chapter on sexual offences.
2.4 The Swedish Criminal Code and “the injured party”
The Swedish Criminal Code is organised into a number of chapters that each address crimes of a certain type. Chapter 4 for example deals with crimes against liberty and peace, whereas
50 BrB 16:10a. For a full excerpt of the provision, see appendix 1.
51 BrB 16:10a.
52 Ds 2018:23, p. 43.
53 BrB 16:10a.
54 Prop. 1978/79:179, p. 6-7.
22 chapter 5 only addresses defamation offences. The 6th chapter is labelled On sexual offences and deals with all crimes of a sexual nature. Chapter 16, the chapter in which the provisions on child pornography crimes are found, is labelled On offences against public order. Here, various crimes are positioned where there is not one specific individual that is deemed to be the injured party (målsägande in Swedish), one specific individual crime victim. Instead, the
“victim” of the offence is the state or the public in general.55 Among the crimes that are placed in chapter 16 are rioting,56 refusal to obey an official command,57 mutiny,58 and agitation against a population group59, which includes for example hate speech. This is also where the provisions on the child pornography crimes are found, despite the fact that these offences are of sexual nature. This is explained partly by the fact that the child pornography crimes do not in fact refer to the sexual crimes that may be depicted in the material, but the production or dissemination of the pornography per se. Furthermore, the child pornography crimes are understood as crimes against not one child but all children, as the material sexualises all children.60
Even though child pornography crimes are placed in the 16th chapter, it is still possible for a child to be deemed the injured party in a specific case. This depends on a number of factors and the nature of the case. To begin with, the child in question has to be an actual child, not a fictitious child that for example has been drawn. Furthermore, it is more likely that a child is considered the injured party if it is the same person who is creating the pornographic material who is also sharing it with others, than if there is no connection between the child and the person who is making the material available to others.61 Also, it is important to note that a child who is abused sexually in the making of pornographic material would be the injured party in the sex crime. The fact that child pornography crimes are found in chapter 16 does not mean that the sexual crimes committed would not be investigated or brought to trial.
The matter of who the injured party, in a legal sense, is in a case is important. Apart from a symbolic value where the child pornography crimes are considered a crime against a child and not against the state, there are direct consequences for the individual child as well.
To start with, a victim of a sexual crime placed in the 6th chapter of the Swedish Criminal
55 Ds 2018:23, p. 77.
56 BrB 16:1.
57 BrB 16:3.
58 BrB 16:6.
59 BrB 16:8.
60 Ds 2018:23, p. 9.
61 Ds 2018:23, p. 78.
23 Code automatically has strong rights to a legal counsel,62 a so-called målsägandebiträde in Swedish. This legal counsel serves to ensure the injured party’s rights and to be the link between the prosecutor and the injured party. The counsel can also seek financial compensation on behalf of the injured party.63 Injured parties of crimes that are situated in other chapters of the Criminal Code can also be granted a legal counsel, but here, the law states that there needs to be a particularly strong need to grant such a counsel.64 This means, that if the individual child in a child pornography case is not granted the status of injured party, that child has little to no rights in relation to the case. If the child however is granted the status of injured party, this still does not mean that the child is guaranteed a legal counsel.
Due to this and a number of other factors, children’s rights organisations in Sweden have pushed for the provisions on child pornography crimes to be moved from the 16th chapter to the 6th.65
2.5 Child pornography and the CRC
In 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC), which serves to strengthen children’s rights all over the world. The CRC has since then been ratified by all member states apart from the United States.66 Somalia and South Sudan are the latest countries to have ratified the convention, in 2015.67 The CRC defines a child as a person under the age of 18 and contains articles including, but not limited to, ensuring children’s rights to protection from discrimination,68 the right to care and health,69 and to survival and development.70 It also has specific articles addressing abuse and violence against children, both sexual and non-sexual. Article 19 states that the states parties shall take all appropriate measures to protect children against all forms of violence, both physical and psychological, as well as abuse and sexual abuse, while in the care of their legal guardians or parents.71 In addition to article 19, article 34 specifically addresses sexual abuse and sexual exploitation of children. Here, it is stated that the states parties shall take all appropriate measures, on all levels, to protect children from sexual coercion, from exploitative practices such as prostitution, and “[t]he exploitative use of children in
62 Lag (1988:609) om målsägandebiträde, 1§.
63 Lag (1988:609) om målsägandebiträde, 3§.
64 Lag (1988:609) om målsägandebiträde, 2§.
65 See e.g. ECPAT, p. 42 (2017).
66 Grahn-Farley, p. 11 (2019).
67 UN News (2015).
68 CRC G.A. res. 44/25, art. 2 (1989).
69 CRC, G.A. res. 44/25, art. 3 (1989).
70 CRC, G.A. res. 44/25, art. 6 (1989).
71 CRC, G.A. res. 44/25, art. 19 (1989).
24 pornographic performances and materials.”72 As children according to the convention are all individuals under the age of 18, there is a discrepancy with the Swedish law that strictly speaking does not protect everyone under the age of 18 against child pornography crimes. It is however not explicitly stated in the CRC that child pornography should be criminalised by all member states.
Sweden ratified the CRC as early 1990, and as of January 1st, 2020, the CRC is part of the Swedish national law.73 The CRC was originally meant to be translated into the member states’ legal system, but not necessarily directly implemented.74 This is evident in how the convention is formulated, and in the language used. The incorporation of the CRC into Swedish law may pose a challenge, as the convention has a strong focus on the “best interest of the child”, and that each child’s rights should be upheld by all means possible, whereas the justice system is obligated to be objective and based on the rule of law.75 According to some legal experts, the vagueness of the convention, and the fact that it is not adapted to the Swedish society and its specific societal functions, will make it difficult to implement in Sweden.76
Children’s rights organisations in Sweden such as Save the Children (Rädda Barnen, the Swedish member organisation of Save the Children International), Unicef and the Ombudsman for the Children in Sweden have lobbied for the Swedish government to pass the CRC as Swedish law, specifically for the convention’s focus on the best interest of the child.77 Swedish Save the Children argues that by making the CRC Swedish law, the status of children’s rights will increase in Sweden, and force the various courts in the Swedish legal system to motivate how their decisions and rulings fulfil the obligations of the CRC.78 Despite their advocacy for passing the CRC as Swedish law, the organisations have voiced concern regarding the implementation of the convention and how social workers and others should apply and interpret it.79
72 CRC, G.A. res. 44/25, art. 34 (1989).
73 Grahn-Farley, p. 9 (2019).
74 Grahn-Farley, p. 15 (2019).
75 Grahn-Farley, p. 15 (2019),
76 Karlsson (2019).
77 Karlsson (2019).
78 Rädda barnen (2018).
79 Karlsson (2019).
25
3 Historical development of the Swedish legislation
3.1 Introduction
In this chapter, the four reforms addressed in this thesis; the 1972 reform, the 1980 reform, the 1999 reform, and the 2010 reform, are presented more in-depth. This provides the data necessary for the analysis in chapter four.
3.2 The 1972 reform: The legalisation of pornography
Historically in Sweden, there have been several so-called morality laws, mostly related to sexual relations, with the purpose to prevent what was considered to be sinful behaviours.80 Prior to the 1970s, pornography was illegal in Sweden, due to concerns of its effect on children and youths that may watch it, as well as concerns regarding increased criminality due to pornography consumption.81 During the 1960s however, Sweden went through a sort of sexual liberation and many of the morality laws were seen as out-dated and old-fashioned, among them the prohibition of pornography.82
The Social Democratic government at the time was very much in favour of changing laws regulating sexual relations, both regarding sexual relations among adults as well as those related to children, and pushed for reforms that would effectively result in less protection of children against sexual abuse. This led to one very infamous inquiry, the 1976 inquiry, which addressed all laws on sexual crimes. The 1976 inquiry, conducted on behalf of the government, proposed for example that the law on sexual molestation should be amended so that it only applied to victims under the age of 10, and that the law banning “the seduction of youths”, a prohibition on soliciting sex from children, should be abolished.83 Even more controversial, it suggested abolishing the law prohibiting incest, both between parent and child, and between siblings.84
The 1976 inquiry was widely criticised and the amendments were never implemented,85 and instead a new inquiry was conducted in 1977 and published in 1982, the 1982 inquiry, which was not as controversial as the former. However, the statements made by some of the consultative bodies in their responses to the 1982 inquiry paint a picture of a very liberal Sweden, where children’s vulnerability was unacknowledged. The Swedish Federation
80 SOU 1976:9, p. 2.
81 SOU 1969:38, p. 54.
82 Hagner, p. 32 (1995).
83 SOU 1976:9, p. 18-19.
84 SOU 1976:9, p. 23.
85 Hagner, p. 31 (1995).
26 for Lesbian, Gay, Bisexual and Transgender Rights (RFSL) stated for example that it could not be ruled out that there was a potential harm in hindering children from having sexual relations with adults, as it, according to the organisation, could have a negative effect on children’s sexual development. It also criticised that the inquiry did not take into account if the child itself had been the one taking the initiative to sexual relations with an adult.86
Prior to the 1976 and 1982 inquiries on sexual abuse of children, the widespread support for the abolishment of the legislation prohibiting pornography spurred an inquiry published in 1969, conducted on behalf of the government, looking into the possible legalisation of pornography. The 1969 inquiry, named “The limits of freedom of speech”87 (author’s translation), examined whether or not the morality law banning pornography should be removed, and how this would change freedom of speech in Sweden88. Several conclusions were reached in the 1969 inquiry and suggestions were made to the government at the time.
Most importantly, it was suggested that the law prohibiting pornography should be abolished.
A few restrictions were to be applied, for instance it stated that pornography should only be transmitted to those who explicitly had asked for it, so as to cater to those in society who were against pornography and did not wish to ever come in contact with it.89 At the time, it was primarily religious groups that opposed legalising pornography. It also stated that there should be a limit to what constituted “acceptable pornography”, which referred to particularly violent pornography as well as child pornography, which the 1969 inquiry recommended should remain illegal.90 This particular suggestion was supported by a majority of the consultative bodies.91
In the end, the government drafted a legislative proposal where the law on pornography would be abolished. In the draft, no exception was made for child pornography, which was left unaddressed. The law was passed by the Swedish parliament, effectively legalising adult and child pornography in Sweden as of 1972.92 Pornography was now only prohibited if displayed in a public place, when displayed with the intent to offend people, or when shown or shared with someone who had not explicitly asked to see the material.93
86 SOU 1982:61, p. 45.
87 SOU 1969:38
88 SOU 1969:38, p. 3.
89 SOU 1969:38, p. 67.
90 SOU 1969:38, p. 66.
91 Hagner, p. 32 (1995).
92 Hagner, p. 32 (1995).
93 Prop. 1978/79:179, p. 6.
27
3.3 The 1980 reform: The partial criminalisation of child pornography
During the 1970s there was an increase in the prevalence of child pornography in Sweden.This can be explained by the legalisation of the crime, as well as technological advances making it easier to create and share pornographic material of children.94 At this point, child pornography was primarily distributed in the shape of magazines and so called cine film, a format mostly used for home movies. The magazines and movies were sold openly in pornographic stores in Sweden.95 However, during the 1970s there was an increased opposition to child pornography being legal in Sweden, mostly due to the realisation that children could be harmed by the practice.96 A committee was formed which would look into possibly adding a provision on child pornography crimes in the Swedish Criminal Code and to make changes in the Freedom of the Press Act (in Swedish: Tryckfrihetsförordningen, or TF for short), the two laws which would need to be amended to criminalise child pornography of any kind.
The committee made several suggestions of changes that should be made, and based on the committees’ findings, a legislative proposal was drafted. In the proposal it was suggested that there should be a provision added to the Criminal Code, in chapter 16, prohibiting the creation and production of pornographic material of children with the intent to distribute said material, as well as all dissemination of child pornography.97 Furthermore, it was proposed that a similar prohibition be included in the TF, which, being a constitutional law, meant that the proposition would have to be passed twice by the Swedish parliament with one general election held in between.98
In the proposal, the reasons for a criminalisation of the production of child pornography with the intention of dissemination, as well as dissemination in general, were several. First of all, it was argued in the proposal that children participating in child pornography were unable to comprehend the implications and consequences of their participation, and that the participation might harm the children’s view of sexuality. Also, it argued that the dissemination and production of pornographic material of children were harmful for all children, not only for the child participating.99 However, it was never explained in the proposal why not all production of child production should be criminalised, instead of only production with the intent to disseminate the material. Whether or not children
94 Hagner, p. 33 (1995).
95 Prop. 1997/98:43, p. 55.
96 SOU 2007:54
97 Prop. 1978/79:179, p. 4.
98 Prop. 1978/79:179, p. 7.
99 Prop. 1978/79:179, p. 8.
28 actually can consent to participation in child pornography is not addressed either in the proposal. The proposal was passed, and as of January 1st 1980, the production of child pornographic material, with the intent of dissemination, and dissemination of child pornographic material became illegal in Sweden according to chapter 16, paragraph 10 of the Criminal Code. The TF was also amended, making it illegal to disseminate child pornography in Sweden.100
3.4 The 1999 reform: A wider criminalisation of child pornography
With the Swedish Criminal Code and the Freedom of the Press Act banning production of child pornography, with the intent of dissemination, as well as dissemination of child pornography, certain progress had been made in Swedish legislation. A new constitutional law, the Fundamental Law on Freedom of Expression (Yttrandfrihetsgrundlagen, or YGL, in Swedish) was passed in 1991 and came into effect in 1992. Where the TF regulates only print media, the YGL covers all media except print media, such as TV, videos, radio, and the Internet. Provisions on child pornography crimes were included also in the YGL, making the legislative situation on child pornography a complex matter regulated by three different legislations.101 Child pornography was in a legal sense still very much a matter of freedom of speech.
However, child pornography crimes were still being committed and were on the rise, much thanks to advances in technology. Also, the definition of “dissemination” was that the material had been made available for more than a few, making much of the production and dissemination of child pornography legal as it was common that the material was shared from one person to another.102 Due to this, many perpetrators producing and sharing child pornographic material evaded prosecution, as it was difficult for the police and prosecutor to prove intent to distribute.103
In the early 90s, certain events occurred that affected the Swedish public’s view on child pornography. First of all, there were two large-scale child pornography cases in Sweden that got the attention of the public. Many child pornography users were persons of interest in the cases, 20 individuals in one of them and 39 in the other. However in the end, only 3 individuals were convicted of a child pornography crime in the first case, and as few as two in
100 Hagner, p. 40 (1995).
101 Hagner, p. 29 (1995).
102 Hagner, p. 40 (1995).
103 Prop. 1997/98:43, p. 64.
